Appeal court to scrutinise legality of enhanced shared parental pay

Rachel Crasnow QC and Siân McKinley of Cloisters look at the recent decision of Ali v Capita Customer Management Ltd (ET1800990/2016) regarding enhanced Shared Parental Pay.

For the first time, the employment tribunal has upheld a complaint of sex discrimination from a male employee who was refused enhanced Shared Parental Pay. While this decision is not binding on other tribunals, employers who do not offer enhanced Shared Parental Leave (SPL) may wish to use this opportunity to review their policies.

Judgment

Mr Ali sought to take SPL to care for his newborn daughter after his wife was diagnosed with postnatal depression. He wanted this period of leave to begin 2 weeks after the birth (directly after his 2 weeks of ordinary paternity leave). However, he was deterred from taking SPL because he was told he would only receive statutory pay during this period. Female employees on maternity leave received 14 weeks of enhanced pay.  

Mr Ali argued that, after 2 weeks compulsory maternity leave, either parent (mother or father) could care for their baby and it was directly discriminatory to deter him from doing so by refusing to pay him enhanced pay. The Respondent argued that Mr Ali could not compare himself to a woman on maternity leave because he had not given birth.

The tribunal considered Mr Ali was not comparing himself to a woman who had given birth. Mr Ali had accepted that the first two weeks after childbirth were specifically associated with recovery from childbirth, a condition unique to women.

After those two weeks, the tribunal held, a female employee who took maternity leave to care for her baby was an appropriate comparator. It did not matter Mr Ali had not given birth. It therefore upheld Mr Ali’s direct sex discrimination claim.

Analysis

The low take up of SPL is due in large part to fathers not being able to afford to take it at statutory rates[1]. The facts of Ali are unfortunately entirely consistent with these findings.

The outcome of Ali accords with the purpose of the Shared Parental Leave Regulations 2015 (the Regulations) - to allow parents to share the care of young babies and alleviate the burden on working mothers. Equality for women in the workplace will be easier to achieve with parental leave that can be genuinely shared between mothers and fathers, according to the circumstances and choices of the family. It is encouraging that the tribunal directed itself that legislation had to be read in the context of parental roles and choices as they are in 2016. It explicitly reminded itself that either parent could perform the role of caring for their baby in the first year.

On the other hand, the Tribunal take a novel approach when accepting that the purpose of the Regulations is relevant to a claim of sex discrimination under the Equality Act 2010. It is arguable that the purpose behind one piece of legislation has no bearing when applying different legal provisions. Moreover, there is no mechanism by which pieces of purely domestic legislation can affect the interpretation of provisions in EU-derived legislation. Certainly this was the approach of the tribunal in Hextall v Chief Constable of Leicestershire Police ET/2601223/2015 where a male employee’s claim for direct sex discrimination on very similar facts was rejected.

It is also questionable whether the act of giving birth is a material circumstance for the purpose of defining the correct comparator. The tribunal held it did not matter that Mr Ali had not given birth, but did not explain how it came to this conclusion. In Hextell a different tribunal, taking a more traditional approach, was scathing of attempts to portray a female police constable on maternity leave as an appropriate comparator.

The tribunal in Ali did not appear to be aware of the judgment of Hextell. It also made no mention of the earlier well publicised tribunal case of Shuter v Ford[2014] EqLR 717.

In Shuter, a case on enhanced additional parental leave, the tribunal said a woman on maternity leave could only be the correct comparator if Parliament had “detached” maternity leave from that which is necessary to protect health and safety arising from the biological condition of pregnancy. 

This is consistent with the position in EU jurisprudence. Once national legislation has divorced the fact of childbirth from the right to leave, thereafter the derogation is to be read narrowly and the member state is required to be consistent in its treatment of men and women: see the CJEU decisions in Roca Álvarez v Sesa Start España (C-104/09) [2011] 1 C.M.L.R. 28 and Maistrellis v Ypourgos Dikaiosynis (C-222/14) [2015] I.R.L.R. 944.

Arguably, this detachment has taken place. The Regulations ring-fence the first two weeks of SPL for the mother but thereafter the father or other partner of the working mother has the same right to leave as the working mother, and a greater right than some non-working mothers. Moreover, under the Children and Families Act 2014 UK parents having children born through surrogacy receive employment protection, leave and pay equivalent to maternity rights.

As a result of these developments, the trigger for a right to leave to care for a newborn child is no longer giving birth, but parental responsibility. If the fact of being pregnant and giving birth is no longer relevant to the right to leave, it cannot be a material circumstance that differentiates a father (or other parent) and a mother. It is disappointing that the tribunal in Ali did not grapple in more detail with this issue despite the outcome reached.

Future cases will have to dwell on the extent to which SPL remains tied to maternity leave or is in practice a form of parental leave. Maternity leave remains a special domain of protection for women, but the fact that mothers can share all but the first two weeks of such leave is highly significant.

For the time being, employers who do not offer enhanced shared parental pay but offer enhanced maternity pay need not necessarily amend their policies yet, since appellate clarification in this area is needed. We understand that Hextall has been appealed and is waiting for the outcome of the Rule 3.10 hearing. Hextell also had an indirect discrimination angle and it would be helpful to have appellant clarification in this area as well. In the meantime, employers should be aware of the risk of challenges from male employees and be ready to process grievances based on such complaints.

Before litigating the matter, Mr Ali had raised a grievance about his treatment. This resulted, the tribunal noted, in an “unnecessarily long and drawn out grievance process”. Part of the problem appears to have been that Mr Ali’s grievance about enhanced Shared Parental Pay was the first grievance this Respondent had received on the subject.

Unnecessary delay in dealing with grievances can result in an uplift of compensation awarded by a tribunal. Employers should ensure their procedures are in place to deal with complaints and that relevant staff members know how to seek assistance if confronted with a new issue. There is a large amount of information about Shared Parental Leave and the complex scenarios which arise in conjunction with it on the SPLASH website (http://www.sharedparentalleave.org.uk) – an excellent forum to which Cloisters contributes.

Cloisters has significant expertise in advising and representing clients in relation to pregnancy, maternity and sex discrimination.  Rachel and Sian advise and lecture on SPL and pregnancy and maternity rights regularly. Please contact our clerks for further assistance.

[1]https://www.theguardian.com/money/2017/apr/05/few-fathers-can-afford-to-take-shared-parental-leave-say-campaigners